A Whole ISIS Report Devoted to Little Ol’ MePosted: November 27, 2012
See the piece here.
It’s such a thrill to see so many of my detractors gathered together in one place. As an academic, there is in many ways no higher honor than to have your work perceived as so significant, relevant and influential, that it merits the energies of so many to respond to it. So I thank the authors and endorsers of this report for the high compliment they have given me in producing it. It’s kind of like having had a symposium devoted to my work – to which I wasn’t invited. Well, let me now offer my contribution to the symposium.
I could of course begin with a discussion of who each of the authors and endorsers of the report are, their varying academic qualifications (two of the three authors are not lawyers, and the third is not an international law expert in my opinion), and the biases they likely bring to the subject because of their past, present and likely future ties to governments and to the IAEA itself. But I won’t do that.
I could also, of course, mention again how many positive reviews and endorsements my work has received, including in peer-reviewed journals and in the international legal scholarly community generally. All this of course can be gleaned from my C.V.
All that such a discussion really does, however, is reinforce the point that on these issues there are many people who agree with me, and some who don’t. That’s going to be true of any interesting, important, high profile issue of academic debate, and so it should come as no surprise that it’s true here.
I’m happy to let the analysis and arguments that I’ve made in my books and law review articles, in my op-eds – including the ones presently proceeding specifically on this topic over at the Bulletin of the Atomic Scientists as part of an invited Roundtable – and here on ACL, stand for themselves in the eyes and judgments of readers. I’m confident, as I always have been, that serious experts in international law, and people who understand the role of international organizations in the international legal system, will agree with my assessments of the relevant sources of law.
To be honest, I don’t see a lot in this new piece in terms of actual legal arguments that haven’t been made before in response to my work, particularly over in the BAS Roundtable by Ford and Persbo. And I’ve already responded to them there, with references to my original post here on ACL. So I don’t think there’s much new to respond to here in terms of substance. It does of course have Albright’s nastiness of tone, which one can spot a mile away.
But I would offer a few thoughts on this new iteration of those arguments.
First, I would note the weakness of the assertions made in this piece attempting to legally justify the IAEA’s inquiries into possible military dimensions of Iran’s nuclear program. I of course wrote on this issue some time ago here. I see no persuasive legal arguments offered in this piece that would challenge my conclusion that the IAEA lacks the authority to investigate and to assess weaponization related activities in Iran.
Second, so much of the text of this new piece is devoted to chronicling IAEA practice and statements which imply that the IAEA thinks it has a legal mandate under the CSA to investigate and assess both the correctness and completeness of Iran’s declaration – i.e. to investigate and assess whether there are undeclared fissile materials in Iran. I’ve never argued that the IAEA doesn’t think they have this authority. In fact, their statements and actions implying that they think they have this authority, are precisely what led me to write on this issue in the first place.
But just because an international organization asserts a legal authority, doesn’t mean that it actually has that legal authority. This is analogous to domestic governments who assert that they have certain legal authorities to act, only to have those assertions authoritatively contradicted by courts who strike down those actions as unconstitutional. Similarly here, the IAEA is bound by the limits of its authority in its Statute and in its safeguards agreements, and its simple assertions that it has certain authorities in excess of these textual limitations, do not serve to effectively overcome those limitations. Actions by the IAEA in excess of its authority pursuant to its international legal constitutive sources, are just as ultra vires and therefore invalid, as are the unconstitutional actions of a domestic government. An objective assessment of the IAEA’s foundational legal sources, using proper international legal interpretation, is necessary in order to determine whether the IAEA is acting within its authority. This is what a court would do if it were to be properly seized of the matter.
Third and finally, the IAEA in CSA Article II has the mandate to ensure safeguards are applied in the state party, subject to the terms of the CSA, which only give the Agency certain limited investigative authorities. The IAEA has over time come to consider that the terms of the CSA, and the investigative tools given to the Agency in the CSA, aren’t sufficient for it to make the determinations required of it in CSA Article II. The IAEA now considers that, in order for it to be able to make these determinations, the CSA state party must provide the IAEA with cooperation in its investigations, above and beyond the level of cooperation required of the state party according to the terms of the CSA, including through the signing of a separate and additional treaty, the Additional Protocol. If the CSA state party doesn’t provide this cooperation above and beyond the terms of the CSA, the IAEA thinks that it can still apply what it considers to be its mandate for assessment under the CSA, and by reference to this mandate determine that the state party is in noncompliance with its safeguards obligations – even though as far as the state is concerned, it is doing everything it obligated itself to do according to the terms of the CSA, and is providing all the procedural and substantive cooperation it agreed in the CSA to provide.
Basically, the IAEA has taken the view that it can unilaterally change the obligations of cooperation that states are under pursuant to a CSA, to obligate the CSA state party to give the IAEA increased but unspecified investigative and assessment tools, in order to enable the IAEA to make the determination that there are no undeclared fissile materials in the state party.
And therein lies the problem. The IAEA cannot unilaterally change the obligations of cooperation that states are under pursuant to the terms of the CSA. Instead of realizing this fact, and working within the limits of its existing legal authority and the existing legal obligations of Iran, the IAEA has instead insisted on applying pressure on Iran to cooperate above and beyond the terms of its CSA, and has maintained that until Iran provides this extra cooperation, the Agency will continue to find that Iran is in violation of its safeguards obligations – even though Iran has been providing the procedural and substantive cooperation it agreed to provide according to the terms of the CSA, the only safeguards agreement currently in force upon Iran.
It’s basically a case of one party to an agreement unilaterally trying to change the rules of the agreement, and alleging that the other party is in breach of the agreement if they don’t abide by the new rules.
So this has essentially produced the standoff that we see reflected in IAEA DG reports on Iran. The IAEA insisting that it be given more investigative cooperation by Iran than that which Iran is required to provide in its CSA, Iran refusing to provide that additional cooperation, and the IAEA maintaining that if Iran doesn’t give that additional cooperation, the IAEA will continue to determine that Iran is in noncompliance with its safeguards obligations.
The IAEA is simply wrong in doing this, and is aggravating the crisis regarding Iran’s nuclear program through its attempts to act ultra vires its legal authority.